As I explained in my previous post, as the law currently stands, format-shifting and backing-up can infringe copyright. But there is no good reason why this must be so. And the Copyright and Other Intellectual Property Law Provisions Bill 2018 currently pending before the Seanad provides a golden opportunity to put things right.

The main legislation relating to copyright at Irish law is the Copyright and Related Rights Act, 2000 (also here). It is the Principal Act for the purposes of the Copyright and Other Intellectual Property Law Provisions Bill 2018. The aim of that Bill, as described in its long title is to amend the Principal Act

… to take account of certain recommendations for amendments to that Act contained in the Report of the Copyright Review Committee entitled “Modernising Copyright” published by that Committee in October 2013 and also to take account of certain exceptions to copyright permitted by Directive 2001/29/EC of the European Parliament and of the Council of 22 May 20011 on the harmonisation of certain aspects of copyright and related rights in the information society; …

Senators David Norris, Victor Boyhan, Fintan Warfield, Ivana Bacik, Kevin Humphreys, Ged Nash, and Aodhán Ó Ríordáin have proposed amendments to the Bill to permit format-shifting and backing-up.…

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Have you ever transferred music from one device to another? Have you copied music from a CD to your phone to listen to it on the way to work? Have you copied a DVD to a tablet to watch it on a long journey? If so, you have probably infringed copyright, almost certainly without realizing it.

Have you every backed-up the data on your phone, or your laptop? Of course, most of us don’t back-up as often as we should; but, if you do, then you have probably infringed copyright, again almost certainly without realizing it.

Moving data from one format or device to another is known as format-shifting, and both it and backing-up mean that you are making copies of the relevant content or data. Making those copies is an infringement of copyright, unless you have the permission of the copyright owner (which usually you won’t have), or you can rely on a copyright exception provided by copyright legislation (which right now, in Ireland, you can’t).

There is no good reason why format-shifting or backing-up should be an infringement of copyright. And there are many good reasons why it should not. In particular, the fact that you didn’t realize that format-shifting or backing-up are infringements of copyright demonstrates that consumers assume that format-shifting and backing-up are perfectly normal behaviour.…

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A recent discussion in the Seanad suggests that a copyright reform Bill will be brought to government very soon. The discussion focussed on the need for efficient enforcement of IP rights in Irish courts, but it was placed in the broader context of copyright reform in general, and the Minister for Jobs, Enterprise and Innovation promised to bring a full package of copyright reform proposals to Government “before the summer recess”. That is due at the end of this week, which means that the copyright reform Bill would have to have been considered by the Government at today’s meeting. But there is nothing on the websites of the Department of the Taoiseach or the Department of Jobs, Enterprise and Innovation to suggest that it was discussed or approved today. Nevertheless, the discussion in the Seanad is suggestive that we will see the government’s reform proposals very soon. Copyright reform is yet another step closer. I greatly look forward to its arrival.

The discussion arose from the following question posed by Senator Ivana Bacik on the Commencement of the Seanad on Wednesday, 29 June 2016:

The need for the Minister for Jobs, Enterprise and Innovation to inform the House when she proposes to implement the recommendation of the Copyright Review Committee in its report Modernising Copyright, published in October 2013, concerning the extension of the small claims procedure in the District Court to include intellectual property claims up to the value of €15,000, as provided for within the draft Statutory Instrument prepared by the Committee.

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Last week, under the title Copyright reform comes a little closer in Ireland, I wrote about the copyright priorities of the Department of Jobs, Enterprise and Innovation, as set out in the Brief (pdf) to that department’s incoming Minister. This post is by way of a short update. The Government’s newly-published Legislation Programme (pdf) sets out the legislation that the Government will seek to publish over the next few months. There are eleven priority Bills for publication this session; there are four Bills expected to undergo pre-legislative scrutiny this session; and there are 17 Bills currently on the Dáil and Seanad Order Papers. This will keep the government and both Houses of the Oireachtas busy in the short term.

Of more long term interest are the 97 other Bills at various stages of preparation mentioned in the Programme. One of them is a proposed Copyright and Related Rights (and Miscellaneous Intellectual Property Matters) (Amendment) Bill (see p15). The aim of the Bill is to implement certain recommendations of the Copyright Review Committee to modernise Irish copyright law, with some other ancillary necessary legislative changes to copyright. And Heads of the Bill are “expected in June 2016”. We’ll see whether the Heads are published before the end of the month.…

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Further to my post on the Brief (pdf) to the incoming Minister for Education, I note this morning that a similar Brief (pdf) to the incoming Minister for Jobs, Enterprise and Innovation has been published on that Department’s website. Under the heading “immediate priorities in the months ahead” (section 1.3, p5) I was delighted to see the following priority:

(p) A Bill to provide for amendments in the Copyright area

It is proposed to submit for Government approval before summer 2016, a Memorandum for Government with draft Heads of a Bill seeking approval to draft a Bill aimed at achieving certain reforms and modernisation of certain aspects of copyright. [p8]

Similarly, under the heading “key priorities for the Innovation and Investment Division” (section 2.2, p22), I was delighted to see the following priority (emphasis added):

(b) Intellectual Property
(i) Implement a new certification scheme for Intellectual Property to enable small companies to qualify for the Knowledge Development Box (KDB) alongside legislation to underpin this initiative and, separately progress necessary legislative changes to patents legislation;
(ii) Continue preparatory work in the lead up to a referendum on ratification by Ireland of an international Agreement setting up a Unified Patent Court to adjudicate on patent litigation;
(iii) Progress amendments to copyright legislation in response to recommendations in the Report of the Copyright Review Committee.

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Modernising Copyright, the Report of the Copyright Review Committee [CRC], was published in October 2013. It contained an extensive draft Copyright and Related Rights (Innovation) (Amendment) Bill 2013 to implement its recommendations. Senator Seán Barrett has now introduced a Private Member’s Bill into the Seanad to enact that draft Bill. Entitled the Copyright and Related Rights (Innovation) (Amendment) Bill 2015, leave to introduce it was granted on Wednesday, 2 December 2015; and the Bill itself was published this morning.

The text is the same as that of the CRC’s draft Bill, except in four respects. …

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In advance of tomorrow’s event on the future of copyright, I thought I’d write a few words about where we are now with copyright reform in Ireland and the EU. The twin legislative bases for Irish copyright law date from the turn of the millennium: the Copyright and Related Rights Act, 2000 (also here) and the EU Copyright Directive (Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society; the InfoSoc Directive). In Modernising Copyright, in October 2013, the Copyright Review Committee recommended various changes to the 2000 Act to adapt it better for the digital age. The EU Commission is moving towards making recommendations with a similar aim.

In January 2012, the EU Commission began a consultation process on reform of the InfoSoc Directive (SEC(2011) 1640 final) (11 January 2012). In parallel, it considered copyright licensing, intermediary responsibilities (notice and action) and private copying levies (pdf). Although the probable conclusions of the consultation process were leaked in 2014, they were never formally published. Among their number seems to have been a recommendation that the exceptions to and limitations on copyright provided by the InfoSoc Directive should be harmonized at a European level, so that every state should provide for the same exhaustive exceptions and limitations.…

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